DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490

Docket No: 5711-19   
Ref: Signature date 

This letter is in reference to your application for correction of your naval record pursuant to Title 10, United States Code, Section 1552.  After careful and conscientious consideration of the entire record, the Board for Correction of Naval Records (Board) found that the evidence submitted was insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied. 

Although your application was not filed in a timely manner, the Board found it in the interest of justice to waive the statute of limitations and consider your application on its merits.  A three-member panel of the Board, sitting in executive session, considered your application on 21 October 2019.  The names and votes of the members of the panel will be furnished upon request.  Your allegations of error and injustice were reviewed in accordance with administrative regulations and procedures applicable to the proceedings of this Board.  Documentary material considered by the Board consisted of your application, together with all material submitted in support thereof, relevant portions of your naval record, as well as applicable statutes, regulations, and policies. 

Regarding your request for a personal appearance, the Board determined that a personal appearance, with or without counsel, would not materially add to its understanding of the issues involved.  Therefore, the Board determined a personal appearance was not necessary and considered your case based on the evidence of record. 

You enlisted in the Marine Corps and began a period of active duty on 29 December 1999.  On 25 September 2000, you were counseled regarding unauthorized absence (UA) on multiple occasions and advised that failure to take corrective action may result in administrative separation and/or judicial proceedings.  On 19 December 2000, you received nonjudicial punishment (NJP) for UA.  You were UA again on 4, 10-12, 16-23, and 28-31 January 2001.  On 1 February 2001, you began another period of UA that continued until you were apprehended on 20 February 2001.  On 30 March 2001, you were convicted by special court-martial (SPCM) of unauthorized absence and three specifications of wrongful use of a marijuana.  Your sentence included confinement, reduction in rank to E-1 and to be discharged from the naval service with a bad-conduct discharge (BCD).  That same day you requested to be placed on voluntary appellate leave while awaiting your punitive discharge.  On 24 April 2001, you were offered, and refused, drug treatment.  On 29 January 2002, appellate review confirmed the findings and sentence of your SPCM.  On 24 May 2002, you received a BCD. 

You request the Board upgrade your discharge.  You assert that you regret leaving the military and your prior misconduct, and that you would like to receive health care benefits from the Department of Veterans Affairs (DVA) due to chronic illness.  The Board was sympathetic to your desire change your characterization of service; however, the Board has no authority to set aside a court-martial conviction and must limit its review to determining whether the sentence should be modified as a matter of fairness or clemency.  In your case the Board determined no clemency is warranted. The Board in its review discerned no probable material error or injustice in the discharge.  Further, there is no provision of law or in Navy regulations that allows for recharacterization of service due solely to the passage of time or a desire to receive benefits. 

It is regretted that the circumstances of your case are such that favorable action cannot be taken.  You are entitled to have the Board reconsider its decision upon the submission of new matters, which will require you to complete and submit a new DD Form 149.  New matters are those not previously presented to or considered by the Board.  In this regard, it is important to keep in mind that a presumption of regularity attaches to all official records.  Consequently, when applying for a correction of an official naval record, the burden is on the applicant to demonstrate the existence of probable material error or injustice. 

Sincerely, 


11/14/2019